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tv   [untitled]    August 19, 2012 3:30pm-4:00pm PDT

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duties" where it might have said instead, "during the conduct of " or "in carrying out the duties." that might have made our job more clear. do you think "carrying out the duties" would have set a higher standard? >> i think it does. tubthere is a case that we cited called the people versus nallen involving a share of in which an instance of child molestation came to light to the sheriff and he did not pursue an investigation and moreover, he did not refer it to any agency. the court said that the job of the sheriff is to detect wrongdoing, and he did not do anything.
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this is something that is a more closely related test under the government code. i think the voters did this. they also said, we are looking at wrongful behavior, not unlawful behavior. this includes things like the decency clause. it shows that the voters wanted this to be a broad provisions of that we could hold our elected officials to a higher standard, including being able to deal with situations like this where you have conduct that relates to $:@the duties of8n clearly, there's on the effectiveness -- bears on the effectiveness of that office where you have consequences that are going forward. they wanted to be able to capture that, and i think this language does. i think that our brief discusses the differences between wrongful behavior and unlawful behavior closely enough and what that signifies.
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i will not dwell on these elements. i will turn to the relationship test and talk about how that relationship test is satisfied here. >> may i interrupt? going back to the definition, in your hand out on the broad definition where you broke it down to inaction and the conflict klas, are you reading the charter to say that when you look at the concept klas, conduct involves the standard of decency, good faith, and right action expected ebro public officers in relation to the duty of his office -- is that the way you are interpreting it as the standard that we should apply today? rex i think it has to be. the use of the word -- >> i think it has to be. the use of the word "including" followed by the rest of the phrase gives us a picture of
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what that relationship should be. >> and your only alleging a violation of the conduct klas. >> we are alleging a violation of the general definition here. all of the conduct that is alleged violates the general definition. some of it also violates some of the other illustrative clauses here. but what we have been focusing on is the general definition, but you are -- general definition. >> are you are not making the argument that he violated the contract clause. >> i think some of the investigation could fall under that category. basically, if the sheriff acted to keep his wife from going to
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police, then he is responsible for all of the consequences that came from him bringing in his campaign manager to clean up this mess. in which case, he is responsible for the actions that she took later that afternoon in regard to the conversations with ivory madison, in regard to the ongoing efforts working with ms. lopez to try to stop this police investigation if he initiated it. if on the other hand, you were to find that he did not initiate this contact, but found out later in the day about their actions, then the other clause would come into play. but other than that, i do not think the inaction claus comes into play. we have affirmative action of wrongful action by the sheriff. >> and you are not making an allegation under the conflicts klas, right? >> with regard to the shares
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threat to use his power, that certainly does violate conflict of interest laws specific to the city, but there is no question that is also a conflict of interest as well. >> have you identified the conflict of interest that he violated? >> yes, it is in our brief. the provision says you cannot violate any provision of a statement of incompatible activities. and the shares statement of incompatible activities, like every statement of incompatible activities in the city, states that use the premhu) power of his office for a private and. bad as the violation. these costs -- that is the violation. these clauses are -- in this case, that clause is also met.
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>> would it be your position if it was not the position of share, but that the public official was, let's say, a supervisor, and he or she performed the same acts that you allege were performed by the sheriff's people to try to close off the investigation, that would not be a violation in so far as criminal investigations. >> if you have a situation where the prize -- the person was not initiated the contact, but it came to light after the fact that others were working on his behalf to cover up this crime, you could argue under that circumstance that as much as you would want them to take action, they may not be under an
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obligation to. >> that is the way you read the statute? >> with regard to specifically the inaction on -- klas, we might read it that way. the >> sometime today, can you show me -- and i may have just missed it -- where your amended charges you rely on the conflicts klas -- clause you rely on the basis of stating this? >> we just specifically state that it is wrongful in relation to the duties of office. we do happen to think it also means that illustration, but we think it is the first to begin with. -'kwe do separately alleged that using the power of your office in a custody dispute is wrong. >> when you discuss the
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evidence, can you discuss the evidence you think supports the general clause, and then the evidence you think supports the conduct clause under your interpretation? >> what it really is, is applying two different principles to the same set of legal facts. at the very end of our brief we do address that, the idea of what baseline standards this concept might violate. the argument is, committing domestic violence is certainly not something we are willing to tolerate from a sheriff. clear relationship with the duties of office when it -- as it regards law-enforcement. it on the other hand, from a supervisor alone, i do not think the voters of san francisco contemplated that standard of decency would permit domestic
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violence by any official in the city and county of san francisco. that would meet -- that is an example of where it would meet both clauses. we get into more difficult territory when we are talking about the baseline standard. but we do not have to go there to complete the task that we have because regarding the duties as sheriff, is clear. the evidence supports it and i do not think anyone will dispute there is a relationship there. >> thank you. >> i will do my best to do some highlights of the evidence here. the heart of these charges has always been the sheriff's crime and his conviction and sentence for those charges, and the consequences of that for his office. we also have a course of conduct that follows that included acts of witness dissuasion -- i should say, not just follows, but actions that were wrapped up
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in that. witness dissuasion, and actions that reader deceitful or abused his trust or did not comport with his responsibility with law enforcement. but the heart of the charge has always been the domestic violence. >> you talk about the evidence? i do not need to hear your evidence for the physical abuse. it would be helpful to me if he would point me specifically to the evidence of which is dissuasion in particular -- which has dissuasion in particular, and also the evidence of using his official powers to try to obtain custody of his child. and thirdly, the evidence that his statements to the police were willfully -- what was the term you used?
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willfully misleading. i want to know what the evidence is. i, for one, credit inspector daniel lee that the sheriff said that to him. i want to know what evidence that you have of a lie, that he knew he had a gun and did not turn it over. >> i neglected to start my stopwatch. f have left. >> i have you at 32 minutes. >> we are 32 minutes in? >> yes. correct and i must move quickly. with regard to the evidence of the threat, we have the video, which is in. and we have the contemporary needs statements to ivory madison, which are also in. we also have the statement of kelly williams, which when it came in, was a statement of your sake, but ms. lopez has since testified.
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-- of hearsay, but ms. lopez has since testified. it is no longer here say. >> where in the record does it say -- as does ms. lopez dsay that the sheriff told me that he can take away my son because he is the sheriff and he has that authority, or something to that effect? gregg's ms. lopez -- >> ms. lopez never testified to that. she testified to the opposite, which is what made the statement admissible. ms. williams made declarations, and it is also in the video, that he is very powerful. he said he can take away theo and that he is very powerful. >> it is your position that by
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saying he is powerful that it implies that he will use his power as an elected official and we should implied that he will use the power of his elected office to try to take custody of his child. or exert force over his wife. >> that is what ms. lopez said she understood it as. >> where is that testimony? >> there are two things. one is a testimony that she sent -- of a text message that she sent st., "use your power." she said that in her testimony. she understood her -- his power, and it is in circumstantial evidence as to what he meant when he said he was very careful. -- powerful. ili am happy to give specific e
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reverences' after i have a chance to sit down and look at the -- references after i have a chance to sit down and look at the testimony and there are other questions as to why we think the sheriff was being dishonest as regard to weapons. the sheriff was confronted with a situation that required him to turn over his weapon. the inspector has said that the agreement we made was that his attorney would call us, meaning me and my partner, of the next day to turn over the weapons. they went to the sheriff and said, we see you have three weapons. the sheriff said, oh, you know, i have two of those three weapons, but that third weapon, i sold it in 1996 to recruit at the police academy. what was his explanation? he said he was thinking out loud and he did not know where the weapon was and he wanted to
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be helpful. if a person does not know where his weapon is and he is confronted with an order that says, give me oliver weapons -- all of your weapons. he is going to say, i do not know where it is. he is not going to say, i dispose of it on this day in this way. he would not give details of the transaction. it is nott( credible. >> but the guns get turnover at the same time. >> they do, but the process also shows that the shares account of what that agreement was is not credible. >> but even if he said the words that the inspector says that he said, what is the motive to lie about selling the guns 15 years ago if they end up all being in the same place and end up getting turned over together? are you trying to make an allegation that he was trying to
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keep one gone from the police so he could have it for himself? >> i think the sheriff was confronted with this order, did not like the idea of having to turn over his firearms. i do not think anyone likes the idea of having to turn over what they have, and he made it -- a stupid decision o. he decided, i do not want to give these to the san francisco police department. i am suspicious of them. i did not have a great relationship with them. i want to keep the weapons under my control. i'm not saying it is rational. but it is understandable that somebody who does not want to turn over his weapons and is suspicious of the agency that he is turning them over to could make that decision. that would be the motive, that he simply does not want these weapons to be in the hands of
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the police department. to me or to you that may not seem like a good motive or a good choice to make. but i do not think that -- but he nevertheless did it. it there is no other explanation for why someone would make up a story other than, i do not know where it is. >> how about making the argument of giving up the guns to the sheriff's department said of the police department and then making up these stories of the witness dissuasion? >> again, i definitely do not want to give up my guns. ok, i'm going to have to give them up because i do not want to out and out violate a court order, but i still want to keep them in my agency. again, this does not seem like a
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very sensible thing to do. but there are a lot of things that the shares did that are not very sensible -- that the sheriff did that are not very sensible. if you look at what his testimony was at the cheering to explain this, you will find that testimony was not -- at the hearing to explain this, you'll find that testimony was not credible. the sheriff said, the agreement was, my lawyer was going to give the weapons to the sheriff's department and the sheriff's department was going to give them to the police department. that was his testimony. what happened next? we know from the inspectors declaration that the next day when he spoke on the phone with capt. or would from the sheriff's department, she did not have any idea that with the plan. -- was the plan. this was an agreement that he
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supposedly made, but he sends over a member of his staff and did not inform her. if she had known that the plan, she would have given the weapons to her counterpart at the police department. but the next thing that happened that could disprove his testimony is this. there was a court date the following week where his attorney was present, the same attorney that was present when he reserve with the order and this agreement was allegedly made. the district attorney asked the judge to issue an order to the sheriff's department telling them to turn over the weapons to the police department. if the plan was as the sheriff described, his attorney would have said, ok, that was the plan. but he did not. he objected and tried to stop that order from being issued. the explanation that the sheriff gave is not credible. it is disproved by the actions
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of the staff and his own attorney. what this commission can conclude from that is that the shares testimony in relation to this gun issue is simply not credible. and the lack of credibility with regard to the gun is related to the same poor judgment and poor decision making that led him to take this deceitful action in the first place with regard to use guns. and the last reason why this all matters, we submitted and is in the transcript of this particular hearing where the judge explained that in a domestic violence case, especially involving the sheriff, things have to be done by the book and those weapons have to be with the police department, not the sheriff's department. the judge -- the court recognized it is the sheriff not
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doing things by the book. it is the sheriff's thinking the rules do not apply to him. it is the sheriff using his own staff to keep his guns out of the hands where they should be. whatever motive, it was an improper motive. he did it. can you remind me of what your other questions were? gregg's your brief mentions ms. lopez. -- >> your brief mentions ms. lopez. it also references a lot of other testimony that we heard. are you alleging official misconduct based on dissuasion by the sheriff toward any other individual? >> yes. the sheriff worked directly on ms. lopez. he coupled his pleas not to go to the police with threats regarding custody, and he got
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his campaign manager involved. this is all in an effort to try to get ms. lopez not to go to the police. that is ms. lopez. then the sheriff became aware of what's the ladies what we're doing on his behalf. ofwe spent so much time lookingt the records of what happened on territory for, how close to the other end of frequent the calls were, how were they interspersed with miss lopez's communications. it is inconceivable the sheriff did not know what was going on in did not act in response to what he had initiated. >> the argument he found out about it and told ms. madison that she should not go to the police, that something bad would happen to her if she does or that he will use the power of his office to prevent her from doing were going to the police
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or cropper in with her? to go regard to ms. lopez or hurt efforts? >> you conceded the sheriff did not talk to miss maddison. ├▒iin the two people that did are ms. haines and ms. lopez. are you alleging that she should come as madison not to talk to the police because the sheriff would use his power the basis of the latter effort on did report where miss lopez was officially turned and started to work on the other witnesses was that the share of new about it and did not do anything.
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he should have responded to the efforts that his wife and ms. haines for making. -- were making. >> you were saying he should then something but did not do. what should he have done with respect to this madisms. madiso? >> he should have at least try to persuade his wife to not call her and persuade her. he actually did the opposite. >> i am giving an example of the path he should have taken. take of the fact that he did not do that, my view is the evidence does not show he did that, but you think we should find that he committed official can dog -- misconduct because he did not convince his wife to stop
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telling miss madison not to call the police. >> that is one of the things. there was a text message he sent to his wife for he told her you have to reject ivory's actions. we both do. that is encouraging his wife. that is actually taking duty. i still8qd think he had a duty o do something, but we an action of him encouraging his wife to do that. we also have his knowledge it is happening. another thing he could have done is called of miss madison to say i understand there is a police investigation, my wife may have said something about market -- not talking to them. you should cooperate because i have nothing to hide. that should of been the ideal thing to do, because after all that was the object of the witness persuasion efforts. >> anyone else you are alleging he persuaded from going to the police or cooperating?
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>> i think he is wrapped up with ms. maddison, but no. >> do you think he had an affirmative duty to tell his like that you should cooperate with the investigation? >> to tell her to cooperate? no, i think his duty was about having her not go to try to interfere with the investigation with regard to other witnesses. she can do what ever it is that she wants. -- i think i misunderstood the question. early on he did make those efforts. >> i am sorry to interrupt you. i appreciate the public is invested in this, but it is very important that you not have outburst, any comments or noises. i am instructing the sheriff's office right now to please, without me interrupting, if you see someone making noise, please
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remove them from the room. thank you. to go with regard to his wife, -- >> with regard to his wife, he had an affirmative duty to nott( pressure her to go to the place and not make friends, unless his campaign manager had an effort to persuade her. i do not think he had a duty to tell his wife i committed a crime, go to the police. he did not have a duty to do that, but that is not what happened here, so we do not have to deal with that. he took an ax to prevent his wife from going to the police. -- took acts to prevent his wife from going to the police. >> thank you. your time is up.
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>> good morning, commissioners. i want to begin by thanking you to the city and service of san francisco for this proceeding. this has taken an extensive amount of time on everyone's part, and i want to thank you on behalf of myself, the sheriff, and miss lopez for your careful consideration of the evidence and a lot in this case. this morning, before closing argument, i will spend a few minutes talking to you about discretion. that i will turn it over to mr. kop who will discuss official misconduct and the facts as it relates to official misconduct. >> before you start, can i make a comment as someone who was tried cases for a lot of years and appear before a lot of
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judges, you did not do your client any favor by starting off your brief by saying at the end of an unnecessary protective dog and pony show. is that what you consider these proceedings to be? >> respectfully, no. >> you understand, we are mandated once the mayor took action, we have no choice whether or not to have such a hearing, and counsel for the sheriff and the mayor got together and said how they wanted it to be conducted. >> with all due respect, i apologize for the use of the phrase. it certainly was not meant to describe your consideration and what the commission has been doing under the obligation of the city charter. that was solely meant to describe the mayor's


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